[2015] KEHC 3492 (KLR)
The court found that the appellant failed to comply with the order to file and serve the record of appeal within 21 days, resulting in the automatic dismissal of the appeal for want of prosecution. Since the appeal was dismissed and the sum of Ksh 940,000 had been deposited as security for the decretal sum, the...
Source-derived case information.
- Citation
- [2015] KEHC 3492 (KLR)
- Parties
- Appellant: Mohammed Athumani; Respondent: Charles Ondimu Ogori (suing on behalf of estate of the deceased Douglas Makemab)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 10 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Release of Decretal Sum After Dismissal for Want of Prosecution
- Outcome
- Application allowed. Appeal dismissed for want of prosecution. Decretal sum released to respondent.
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Release of Security, Decretal Sum, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Athumani
Appellant
Charles Ondimu Ogori (suing on behalf of estate of the deceased Douglas Makemab)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Release of Decretal Sum After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal stands dismissed for want of prosecution due to failure to file the record of appeal as ordered.
- 2 Whether the respondent is entitled to the release of the deposited decretal sum following dismissal of the appeal.
Ratio Decidendi
The court found that the appellant failed to comply with the order to file and serve the record of appeal within 21 days, resulting in the automatic dismissal of the appeal for want of prosecution. Since the appeal was dismissed and the sum of Ksh 940,000 had been deposited as security for the decretal sum, the respondent, as the successful party, was entitled to have the deposited amount released to him. The court therefore ordered the release of the Ksh 940,000 to the respondent's advocates and awarded the respondent costs of the application.
Court Disposition
Application allowed. Appeal dismissed for want of prosecution. Decretal sum released to respondent.
Orders
- The amount of Ksh 940,000 deposited in court under receipt No. 0023184 is released to Adogo Odhiang & Associates Advocates for the respondent.
- The respondent is awarded costs of the Notice of Motion dated 16th June 2015.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
HIGH COURT CIVIL NO. 10 OF 2012
MOHAMMED ATHUMANI ……………….…………APPELLANT
VERSUS
CHARLES ONDIMU OGORI (SUING ON BEHALF OFESTATE OF
THE DECEASED DOUGLAS) MAKEMAB)……..….RESPONDENT
(Being an appeal from the Judgment delivered by Hon. L. Mutende Chief Magistrate on 6th December 2011 in Mombasa PM CC NO. 1447 of 2009. )
RULING
1 .On 26th February 2005 the respondent’s application dated 23rd October 2014 was fixed for hearing inter partes. That application sought the dismissal of this appeal for want of prosecution. In the presence of counsel for the appellant and the respondent the following order was made
“ The record of appeal be filed and served upon the applicant within 21 days from 26th day of February 2015, in default the appeal stands dismissed with costs.
2. Appellant did not file the record of appeal as ordered above and accordingly the respondent by his Notice of Motion dated 16th June seeks:
“That the decretal amount of Ksh 940,000 deposited in court vide receipt No. 0023184 be released to the respondent as general damages.”
3 .The application was served on appellant’s advocates Mokaya Ogutu and Company advocates on 17th June 2015 but when it came up for hearing on 23rd July 2015 the said advocates did not attend court and nor had they filed any documents in opposition to the application.
4 .Respondent has based the application on two grounds. Firstly that this appeal stands as dismissed in view of appellant’s failure to abide by the court’s order of 26th February 2015 secondly that aforestated money was deposited by appellant in this court as security for the decretal sum awarded by the lower court.
5 . I have perused the lower court file and I have noted that the decree of that court was for the amount of Ksh 940,250 plus costs at Ksh 76,110 in favour of the respondent.
6 Since the appeal is now dismissed with costs and since appellant deposited Ksh 940,000 in this court as security of this appeal it is right that, that amount be released to the respondent.
7 It I for that reason I grant the following order:
(a) The amount of Ksh 940,000 deposited in this court under the receipt No. 0023184 be and is hereby released to the firm of ADOGO ODHIANG & ASSOCIATES Advocates for the respondent.
(b) The respondent is awarded costs of the Notice of Motion dated 16th June 2015.
Dated and delivered at Mombasa this 30th day of July 2015.
MARY KASANGO
JUDGE
30. 7.2015
Coram
Before Justice Mary Kasango
C/Assistant – Kavuku
For Appellant:
For Respondent:
Court
The Ruling delivered in their presence/absence in open court
MARY KASANGO
JUDGE